Tuesday, July 13, 2004

Chat With Michael Powell

Powell is discussing the differences between broadband in the U.S. and abroad. Lessig wonders whether it's time for the government to start financially supporting broadband infrastructure here as is true in Canada. Powell says we're pretty far past the stage of building a TVA for broadband, and more importantly the government is broke. ("Broken?" wonders Lessig. "Broke," says Powell, amid chuckles.) Jurvetson wonders whether there's an analogy between licensed bandwidth and the computer industry. Powell calls this the trillion dollar question in the U.S. Economically, we embraced state blessed, sanctioned, and advanced monopoly in telecom. Also, we have sophisticated systems (the Bell system) that do one thing really well. (Basically still just tin cans and strings). We stick different regulatory labels on your head depending on the means of transmission, more a function of from whence they came than what they're currently doing. (Try to categorize/classify Comcast.) Powell says what we need is the courage just to throw this system out. Lessig points out that the difference between the monopolies of the past and the Internet is the control of innovation. With the Internet, it's at the edge, and not under any master control. Lessig comments that Powell's embrace of net neutrality principles must be scaring the monopolies. Is there more support in the FCC? Yes, the commission generally has bought into this. The test of the policy will be when someone gets caught. "What I'm really excited about is the opportunity not only to get competition in the pipes themselves...but also in the application service layer." Some of the greatest best hope for innovation. It'll work, as long as companies can get to the end user.

Jurvetson asks about VOIP. Skype received one of the AO100 awards. Powell experienced Skype and said, "The world now will change inevitably." Skype demonstrates a number of powerful things. When you do finally get your head around the fact that packets can deliver all forms of communication, you see the human experience is comparable, the barriers to entry are brought way down (changes competition forever), and changes your view of geography and distance forever. "The phone system right now is regulated on all kinds of metrics that will never ever work again." Local and long distance receiving different regulatory treatment, the Internet shatters this. Geography is fiction. Legal thinkers have hardly caught up with this.

Lessig reads a quote from a Cisco white paper, regarding companies achieving absolute network control. Powell knows the paper, famous paper about quality of service. And yes, to answer Lessig's question, he and the FCC are committed to permitting the Skypes of the world to continue to compete. We need to be vigilant about being focused on Net freedoms. On engineering models, the FCC is more and more forced to examine technical issues about equipment: network architecture, engineering standards. The FCC has a committed staff for this.

Jurvetson noticed today that PBS is now self-censoring content that might lead to fines. Jurvetson emailed Howard Stern, now in the Carribean, who responded with many questions, mostly indecent. He asks, through Jurvetson, "Aside from Oprah, who else will you not fine?" Powell says the commission is driven by complaints. It's an important topic to discuss, and an important issue for the country. Indecency laws apply only to broadcast: not cable TV, not satellite TV, not the Internet. Government has a heightened interest in the use of broadcast spectrum because it is so scarce. The indecency statute was last modified in 1948. You might be shocked if you read it. It's in the U.S. Criminal Code, and includes provision not just for fines, but up to two years jail time. What the courts have found is indecency is protected speech, but the goverment can regulate the time, place, and manner in which it occurs. They've said the statute is constitutional, and Congress (who Powell works for) acknowledges its obligation to enforce it. It's the law. Stern and others are free to push the envelope. What's happened in the last few years, in the year 2000 there were 111 public complaints about television. In the first three months of this year, there were 545,000. With the exponential increase in public complaints, you've seen an increase in FCC enforcement. Getting personal about it, "it's the most uncomfortable area to work in enforcing." It's the job Powell has to do, he tries to do it reasonably. "The notion that the first amendment changes when you change channels is odd. And I'm troubled that it's more than odd, it's dangerous." "A lot of hardworking people try their best to reach this balance, and it's not easy to do."

Lessig asks if there's a role for the agency to force Congress to think more carefully about it. Powelll says something like indecency has a huge degree of subjectivity to it. The law itself recognizes Manhattan, NY and Butte, Montana may feel differently about things. This is political in the way that democracy is supposed to work. There's been a dramatic rise in the American public complaining about indecency, and Congress is hypersensitive to that kind of energy. The Commission has many times tried to say to the courts the fundamental underpinnings of indecency need to be rethought. In 1962 there was no real cable system, now the majority of Americans have cable. The law needs to catch up.

Questions from the audience:

First question deals with Powell's intuition versus his duty to uphold and enforce the law. The courts are the final arbiter of what the law means. A public official can't have a different view of the first amendment than the Supreme Court.

Question about WiMax (?). Will companies who lay the infrastructure be forced to sell access to other companies? Right now, the Commission has taken a fairly hands-off approach to unlicensed spectrum bands, and there's nothing teed up to change that regime. "Everybody's welcome to lay the pipes and spend their own money on infrastructure." If you're talking about WiMax in the licensed bands, you're in the auction process for access to spectrum. Lessig asks, have you been surprised about the amount of innovation in the unlicensed portion of the spectrum, and has this caused you to change your thinking about where innovation occurs? Powell says it's not a zero sum game. Yeah, we're surprised, the government threw out the unlicensed bands because they thought they were garbage. Now you find true, core communications services there. To the Commission's credit, as soon as it noticed this, it jumped on it. It's teaching the government and the market a lot about what you could do with a commons of spectrum. Think about it like a driver's license. No one tells you what kind of car to drive, no when tells you you can't sell it, or to whom, or for what purpose. Why should you always have to get the FCC's permission for every change of use?

I'm missing the last couple of questions, and Marc Canter seems to have missed the chance to ask his, unfortunately. There's a "backchannel" chat that's been put on the front screen. I can't figure out how to log on. Activating my AlwaysOn account would probably help. Sound bite: "If you've ever had a long conversation in Congress about what IP is, it's hard." Ah, Marc got to ask after all: " If you could change anything, what would you do? Give us your wish list." It'd be a big list, says Powell. The question concerns every facet of public and private life. Broadband jurisdictionally is living in lots of different places. The President, Senators are finally talking about national broadband policy. Powell tries to go see state governors. He wants to see more enlightened thinking about what is a quality healthcare plan in America. It has to include using technology and automation efficiently. Have we studied what it means for the first generation of children growing up in the digital age? They're different. "I have two of them. They're weird. They're really, really weird." Is our country doing a good job in learning how to teach them? Powell: "It's a brave world, and it's important to get it right." Canter: "Let's hope for the first father/son Presidential ticket."

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